People v. Wardell

• Decision Date: 26 March 2020
• Docket Number: Court of Appeals No. 17CA1060
• Citation: 474 P.3d 154
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Wendel Robert WARDELL, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

474 P.3d 154

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Wendel Robert WARDELL, Jr., Defendant-Appellant.

Court of Appeals No. 17CA1060

Colorado Court of Appeals, Division III.

Announced March 26, 2020

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Victor T. Owens, Alternate Defense Counsel, Parker, Colorado, for Defendant-Appellant

Opinion by JUDGE ROMÁN

¶1 Defendant, Wendel Robert Wardell, Jr., asserts that he had the right to appear at a Crim. P. 35(c) postconviction hearing, that he sufficiently established ineffective assistance of counsel, and that his plea in this case was involuntary. Deciding an issue of first impression in Colorado, we conclude that a defendant does not have a right to appear in person at a Crim. P. 35(c) evidentiary hearing. Rather, whether a defendant may appear in person is subject to the postconviction court's discretion. In this case, we conclude that the postconviction court did not abuse its discretion when it denied defendant's request to be present in person at the Crim. P. 35(c) evidentiary hearing. We also reject defendant's substantive Rule 35(c) claims. Thus, we affirm.

I. Background

¶2 This case comes to us with a tortuous procedural history. In 1994, defendant pled guilty to one count of fraud by check and was sentenced to eighteen months in prison. Subsequently, he appealed the denial of a pre-plea motion to dismiss the case, which was affirmed by another division of this court in People v. Wardell , (Colo. App. No. 95CA0049, Apr. 18, 1996) (not published pursuant to C.A.R. 35(f) ).

¶3 In 1996, defendant filed a pro se motion for appointment of counsel for the purpose of pursuing a Crim. P. 35(c) motion based upon alleged ineffective assistance of his plea counsel and appellate counsel. The postconviction court denied the motion, finding no meritorious claim for relief under Crim. P. 35(c). Defendant appealed that ruling, and a division of this court affirmed in People v. Wardell , (Colo. App. No. 96CA1274, Mar. 19, 1998) (not published pursuant to C.A.R. 35(f) ).

¶4 In 1998, defendant, again acting pro se, filed a Crim. P. 35(c) motion based upon the following allegations: (1) defendant had been denied the effective assistance of his plea counsel; (2) he had been denied the effective assistance of his second appellate counsel; and (3) his guilty plea was involuntary as a result of the ineffective assistance of his plea counsel. The postconviction court denied the motion without a hearing, finding that the basis for that motion was the same as that which had been raised by prior motions and denied by the court.

¶5 In 2000, another division of this court affirmed in part, reversed in part, and remanded the case with instructions based on the trial court's failure to appoint postconviction counsel or hold an evidentiary hearing. People v. Wardell , slip op. at 9 (Colo. App. No. 99CA1040, Oct. 12, 2000) (not published pursuant to C.A.R. 35(f) ). The division instructed the postconviction court "to appoint counsel to represent defendant at an evidentiary hearing to determine: (1) whether defendant's plea counsel provided ineffective assistance by threatening to withdraw if defendant did not plead guilty; and (2) whether counsel's alleged threats rendered defendant's guilty plea involuntary." Id. The division also instructed the court on remand to "enter findings of fact and conclusions of law with respect to these two issues." Id.

¶6 The postconviction court issued an order again denying defendant's Rule 35(c) motion without an evidentiary hearing. Instead, the postconviction court relied on appointed counsel's written representation that defendant lacked a meritorious claim. On appeal, a division of this court found that the postconviction court erred and remanded the case for an evidentiary hearing in accordance with the instructions from the 2000 Wardell decision. See People v. Wardell , (Colo. App. No. 13CA0926, Aug. 20, 2015) (not published pursuant to C.A.R. 35(f) ).

¶7 Back on remand, prior to the evidentiary hearing, defendant requested that the postconviction court issue a writ to bring him from federal prison in South Carolina to the hearing.¹ The postconviction court denied defendant's request.

¶8 The postconviction court then held an evidentiary hearing and allowed defendant to present postconviction claims from two cases — this case and 92CR995 — because defendant's motions relied on the same or similar factual arguments; namely, that defendant was coerced into pleading guilty in this case and that, as a result, his plea was not voluntary.²

¶9 At the hearing, defendant appeared and testified telephonically and was represented in person by counsel. The only evidence presented to the postconviction court was defendant's testimony.

¶10 In separate orders, the postconviction court denied all of defendant's postconviction claims in this case and in 92CR995. Defendant now appeals.³

II. Analysis

¶11 Defendant contends the postconviction court erred by denying his request to appear in person at the evidentiary hearing. To address defendant's claim, we must first consider whether a defendant has a right to be present in person at such a hearing.

A. Does Defendant Have a Right to be Present in Person at a Postconviction Hearing?

¶12 We hold that in Colorado a defendant does not have a right to be present in person at a Crim. P. 35(c) hearing. This is true whether analyzed as a constitutional right or right by rule.

¶13 "Both the United States Constitution and the Colorado Constitution ‘guarantee the right of a criminal defendant to be present at all critical stages of the prosecution.’ " Zoll v. People , 2018 CO 70, ¶ 19, 425 P.3d 1120 (quoting People v. White , 870 P.2d 424, 458 (Colo. 1994) ). However, the right to presence is not absolute, nor does every criminal proceeding constitute a "critical stage." See id. at ¶ 20.

¶14 Indeed, "[c]onstitutional guaranties protected by [ article II, section 16 of the Colorado Constitution ] relate to trial and not to proceedings thereafter unless a new trial is granted." Agnes v. People , 104 Colo. 527, 538, 93 P.2d 891, 896 (1939) (emphasis added); see Colo. Const. art. II, § 16 ("In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel ...."); see also 15 Robert J. Dieter, Colorado Practice Series, Criminal Practice and Procedure § 16.41, Westlaw (2d ed. database updated Oct. 2019) ("The right to be present encompasses all trial-related proceedings .... This extends from jury selection through sentencing, but does not extend to post-trial matters ....") (footnotes omitted).

¶15 Federal courts have repeatedly held that the right to be present under the United States Constitution does not apply to postconviction proceedings analogous to Crim. P. 35(c) hearings. See United States v. Hayman , 342 U.S. 205, 222-23, 72 S.Ct. 263, 96 L.Ed. 232 (1952) ("Unlike the criminal trial where the guilt of the defendant is in issue and his presence is required by the Sixth Amendment, a proceeding under [ 28 U.S.C. § 2255 (2018) ] is an independent and collateral inquiry .... Whether the prisoner should be produced depends upon the issues raised by the particular case."); United States v. Bergman , 746 F.3d 1128, 1130 (10th Cir. 2014) ; see also Bucci v. United States , 662 F.3d 18, 32 (1st Cir. 2011). Accordingly, defendant did not have a constitutional right to be present at his Crim. P. 35(c) hearing.

¶16 Nor does a defendant have a right by rule to appear in person at a postconviction hearing. Crim. P. 43, which enumerates stages of the criminal process at which a defendant must be physically present, does not include a Rule 35(c) hearing.⁴ Similarly, Rule 35(c) does not address a defendant's presence at an evidentiary hearing. Rather, Crim. P. 35(c)(3)(V) reads, in relevant part: "If the court does not deny the motion ... the court shall grant a prompt hearing on the motion .... At the hearing, the court shall take whatever evidence is necessary for the disposition of the motion." This language says nothing about how the evidence must be presented.

¶17 Because there is no constitutional or rule-based requirement that a defendant be present in person at a Crim. P. 35(c) postconviction hearing, we conclude that whether to grant a defendant's request to be present at a postconviction hearing is within the postconviction court's discretion.

B. Did the Postconviction Court Abuse its Discretion?

¶18 We consider next whether the postconviction court abused its discretion by denying defendant's request to be present in person at the evidentiary hearing.

1. Standard of Review and Applicable Law

¶19 Generally, "a proceeding under Crim. P. 35(c) is governed by equitable principles." People v. Turman , 659 P.2d 1368, 1370 (Colo. 1983). "[A] trial court is obligated to administer justice, control the decorum of the courtroom, and make sure that cases are decided on appropriate grounds." People v. Finney , 2012 COA 38, ¶ 64, 328 P.3d 205 (concluding that a postconviction court correctly limited the time in which a defendant could present his case during a Crim. P. 35(c) hearing), aff'd , 2014 CO 38, 325 P.3d 1044. "To achieve these ends, courts have broad discretion to control the ‘mode and extent of the presentation of evidence.’ " Id. (quoting People v. Cole , 654 P.2d 830, 832 (Colo. 1982) ).

¶20 We review a postconviction court's denial of a defendant's request to be present at a Crim. P. 35(c) evidentiary hearing for an abuse of discretion. See Bucci , 662 F.3d at 32 ("Whether the petitioner should be present at his § 2255 hearing ‘depends upon the issues raised by the particular case,’ and is a matter left to the district court's sound discretion.") (citations omitted); see also Teffeteller v. Dugger , 676 So. 2d 369, 371 (Fla. 1996) ("[I]t is within the [postconviction] court's discretion to determine whether or not...